| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 242 |
| Hearing date | 11-Aug-15 |
| Determination date | 12 August 2015 |
| Member | Eleanor Robinson |
| Representation | J Gandy ; C Hogg |
| Location | Auckland |
| Parties | Michael v Quantum Communication Ltd |
| Summary | JURISDICTION – Whether applicant independent contractor or employee – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Applicant sought leave to raise grievance out of time - UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent treating applicant as independent contractor when employee and unjustifiably dismissed by respondent |
| Abstract | AUTHORITY FOUND –;JURISDICTION: No written employment agreement. Applicant did not receive pay slips or a salary from which PAYE deducted. Applicant not registered for GST. Parties intended applicant to be independent contractor at outset. Agreed hourly rate higher to include GST. Applicant had previously been employee so should be aware of difference. No agreed intention that applicant available for work other than at applicant’s will. Applicant free to accept or decline work. Control test indicated applicant independent contractor. Applicant given work vehicle and equipment, but respondent gave all independent contractors those things. Some degree of integration, but not determinative of employment relationship. Applicant did not query tax status with respondent, as would be expected if applicant genuinely questioned relationship. Applicant only paid for hours worked and free to accept other work. Applicant independent contractor. No jurisdiction.;RAISING PERSONAL GRIEVANCE: No jurisdiction.;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: No jurisdiction. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] NZSC 34, [2005] 3 NZLR 721;Poulter v Antipodean Growers Ltd [2010] NZEmpC 77, (2010) 7 NZELR;Singh v Eric James & Associates Ltd [2010] NZEmpC 1 |
| Number of Pages | 10 |
| PDF File Link: | 2015_NZERA_Auckland_242.pdf [pdf 184 KB] |